Opinion
Argued May 18th
Decided June 22d 1871
D.M. Porter, for the appellant.
Amasa J. Parker, for the respondent.
No evidence was introduced on the part of the defendant showing any limit to the authority of Cooke in making contracts for transportation by the line in question. That he was the agent of the defendant and the other companies for the making of such contracts, is shown by the facts, that a portion of the bales shipped under the contract made by him were carried through, and that the defendant received the freight for the entire distance on all the bales, according to the contract; that on the face of the bill of lading, of which the defendant claims the benefit, the name of Cooke is printed as agent, at Cincinnati, of the line of transportation of which the defendant's road forms a part, which purports to be a through line, and that the bill is signed by him as such agent.
In the absence of any explanation by the defendant, these facts were at least prima facie evidence of the authority of Cooke to make the verbal contract testified to by the plaintiff.
There was no contradiction attempted of the evidence of the plaintiff that he made a verbal contract with Cooke for the transportation of the fifty-four bales through to New York by "all rail," and agreed to pay the all rail route. The goods were shipped under this verbal agreement, before any written contract or bill of lading had been tendered to the plaintiff.
The verbal agreement had been acted upon, and under it the plaintiff had parted with all control over his goods.
The rule that prior negotiations are merged in a subsequent written contract does not apply to such a case as this.
If the plaintiff had expressly assented to the terms of the bill of lading subsequently delivered to him, such assent would operate as a change of the terms of the contract originally made, and under which he had parted with his property. But after the verbal agreement had been consummated and rights had accrued under it, the mere receipt of the bill of lading, inadvertently omitting to examine the printed conditions, was not sufficient to conclude the plaintiff from showing what the actual agreement was under which the goods had been shipped.
In the case of Corey v. The N.Y. Cent. R.R. Co., decided in April, 1871, not reported, we held that conditions contained in a bill of lading, not delivered until after the shipment and loss of the goods, though before the loss was known, did not control the rights of the shippers.
The present case is analogous in principle to the one cited.
The goods having been shipped under an agreement that they should be carried "all rail," a loss occasioned by their being carried by sea is no excuse for their non-delivery to the plaintiff.
There was also some evidence of delay in sending forward the portion of the goods which was lost. This delay, unexplained, tended to show negligence on the part of the defendant.
It is true that there is no allegation of negligence in the complaint. But the complaint alleges the non-delivery of the goods, which was a breach of duty on the part of the defendant, unless excused.
The defendant sets up, in excuse, the conditions of the bill of lading, and the loss of the goods by the dangers of navigation. Even if the conditions were binding upon the plaintiff, it was competent to rebut this defence by showing that the goods became exposed to the danger by reason of the default of the defendant, and that if they had been forwarded with due diligence, they would not have been on board of the vessel which was lost. ( Michaels v. The N.Y. Cent. R.R. Co., 30 N.Y., 564.)
If there was negligence on the part of the defendant in sending forward the goods, the conditions of the bill of lading would not exempt the defendant from liability.
The judgment should be reversed and a new trial ordered, with costs to abide the event.
All concur. Judgment reversed and a new trial ordered.